Supporting sex discrimination in education

Senators’ concerns: In 1993, Kuhl co-authored an amicus curiae brief in the Supreme Court for three private women’s colleges in support of a petition for a writ of certiorari filed by the Virginia Military Institute, a public all-male college in Virginia. In a lawsuit brought by the United States, the United States Court of Appeals for the Fourth Circuit had held that VMI’s denial of admission to women violated the Equal Protection Clause. In an effort to continue to deny admission to women but remain a public institution, VMI filed a cert. petition with the Supreme Court, asking the Court to overturn the Fourth Circuit’s ruling. Senator Feinstein asked Kuhl about her brief. Kuhl Hearing, at 61.

Kuhl’s testimony: Kuhl testified that her brief “was not a brief in support of the constitutionality of VMI. . . It was a brief in support of the petition for certiorari.” Id. She said that her brief was narrowly focused on the importance of women’s colleges and asked that the Court “take that case so as to clarify that all-women’s schools could — were not unconstitutional essentially.” Id.

The facts: Kuhl’s brief was filed on behalf of three private women’s colleges. VMI, by contrast, was (and still is) a state-supported public institution, and the constitutionality of private single-sex schools was not at issue in the case. Moreover, while it is true that Kuhl’s brief did not expressly defend the constitutionality of allowing VMI to continue to deny admission to women yet remain a public institution, it is equally true that Kuhl’s brief stated that it was filed “in support of petitioners” — VMI — and that it specifically urged that “the petition for certiorari should be granted.”10 VMI’s cert. petition, in turn, expressly asked the Court to “grant certiorari and reverse the decision of the court of appeals . . .”11

According to contemporaneous press reports, Kuhl’s brief was filed as part of VMI’s campaign to enlist private women’s colleges in its effort to continue to exclude women.12 As Kuhl admitted at her hearing, the colleges that signed her brief were referred to her through “counsel who was representing VMI.” Kuhl Hearing, at 62. In fact, VMI’s counsel of record on its cert. petition was Richard Willard, Kuhl’s former colleague at the Department of Justice (and co-author with her of the “most aggressive” memo to Fried in the Thornburgh case urging that the Department argue for Roe v. Wade to be overturned).

In her written answers to post-hearing questions from Senator Kennedy, Kuhl attempted to dispel concerns that her brief supported VMI’s efforts to continue to exclude women by stating that the brief “did not express a view as to how the Supreme Court should rule with respect to the constitutionality of VMI’s program.”13 However, if Kuhl had been concerned at the time that her brief not imply support for VMI, she could have stated in the brief that the private women’s colleges took no position as to the constitutionality of VMI’s exclusion of women; Kuhl failed to do so.